By TIOL News Service

BANGALORE, JAN 15, 2017: THE Petitioner assailed the impugned order passed by the respondent-Commissioner of Central Excise (Appeals- I), Bengaluru, rejecting the appeal filed by the petitioner assessee as barred by limitation of 184 days.

The counsel for Revenue submitted that the Commissioner has no power to condone the delay beyond the period of 30 days in terms of Section 35(1) of the Central Excise Act, 1944, which provides for a period of 60 days for filing an appeal and the proviso thereto empowers the Commissioner of Appeals to condone the delay, provided such an appeal is filed within 30 days after the said prescribed period of 60 days.

Petitioner submitted that submitted that since the original order was communicated to the petitioner-Company on 17.12.2015, but was served only on the security personnel and not on the authorized officer on the Company, the same was not delivered properly in the office and escaped the notice of the Company and the appeal could not be filed in time. However, this reason was not considered sufficient and more-so in view of the statutory limitation contained in the first proviso to Section 35(1) of the Act, the respondent- Commissioner of Appeals could not exercise any discretion in the matter.

However, he submitted that since the impugned adjudication order suffers from illegality, the delay deserves to be condoned by the Court in exercise of the extraordinary jurisdiction of Article 226 of the Constitution of India and the respondent-Commissioner of Appeals may be directed to decide the appeal on merits.

After hearing both sides, the High Court held:

+ This Court is of the opinion that the reasons assigned by the petitioner-assessee appear to be of sufficient and the delay deserved to be condoned by the Commissioner of Appeals. However, in view of the statutory limit on his powers, this Court exercising its extraordinary jurisdiction is of the opinion that the said delay deserves to be condoned. It is hereby condoned.

+ Moreover this Court is of the opinion that discretion ought to have been given to the Appellate Authorities under the Act to condone such delays, if caused by sufficient reason. Be that as it may.

+ In the present case, the delay of 184 days is condoned and the appeal is restored to the file of the respondent- Commissioner of Appeals, with a direction to him to decide the appeal on merits in accordance with law, subject to his satisfaction of the required pre-deposit conditions for maintaining such appeal having been satisfied by the petitioner.

(See 2017-TIOL-93-HC-KAR-CX)